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ABSTRACT
In Krishna Kumar Singh v State of Bihar, a 7-Judge Bench of the Supreme Court of India held, inter alia, that Ordinances promulgated during the recess of the Legislature must be compulsorily laid before it upon its re-convening. The note focusses on the implications of the judgment on re-promulgation of Ordinances and the change in position, if any, from the erstwhile locus classicus on re-promulgations— Dr. DC Wadhwa v State of Bihar. The note opines that prevailing judicial decisions may not, in and of themselves, curb the Executive’s tendency to re-promulgate Ordinances. Till there is a paradigm shift in the legal framework surrounding re-promulgations, efficacious use of legislative procedures by members of the Legislature may act as an effective safeguard against re-promulgations.
Acknowledgments
I am grateful to Tarunabh Khaitan and Arun Thiruvengadam for their comments. All errors are mine.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Separation of Powers broadly refers to delineation of powers and jurisdictions amongst various organs of government. See generally, Justice (Retd) R Pal, ‘Separation of Powers’ in S Choudhry, M Khosla and PB Mehta (eds), The Oxford Handbook of The Indian Constitution (South Asia edn, Oxford University Press 2016), 253.
2 In Re Delhi Laws Act 1912 AIR 1951 SC 332; Ram Jawaya Kapoor v State of Punjab AIR 1955 SC 549; Indira Nehru Gandhi v Raj Narain (1976) 3 SCC 321; State of Uttar Pradesh v Jeet S Bisht (2007) 6 SCC 586; Union of India v R Gandhi (2010) 11 SCC 1; Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC 1.
3 The Constitution of India 1950, art 123.
‘Power of President to promulgate Ordinances during recess of Parliament –
(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance –
(a) shall be laid before both Houses of Parliament, and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation – Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.’
4 The Constitution of India 1950, art 213.
‘Power of Governor to promulgate Ordinances during recess of Legislature –
(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if –
(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance –
(a) shall be laid before the legislative Assembly of the State, or where there is a Legislative Council in the State, before both the House, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor.
Explanation—Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the legislature of the State assented to by the Governor, it shall be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.’
5 Krishna Kumar Singh v State of Bihar (2017) 3 SCC 1.
6 Re-promulgate/re-promulgation refers to the practice of promulgating (i.e. enacting) an Ordinance containing same or substantially similar provisions as an earlier Ordinance which has lapsed or is about to lapse. See: Krishna Kumar II (n 5) 121. See generally: S Dam, ‘Making Parliament Irrelevant: A Postcard from India’ (2016) 4 The Theory and Practice of Legislation <https://works.bepress.com/shubhankar_dam/48/> accessed 31 January 2018.
7 Dr DC Wadhwa v State of Bihar (1987) 1 SCC 378.
8 For example, see: Legislative Department, Ministry of Law and Justice, Government of India, List of Central Ordinances Promulgated, 1918–2011 and 2012–2015 <http://lawmin.nic.in/ld/folder1/list_ord.htm> accessed 5 January 2018.
9 DC Wadhwa (n 7) 394–95. For historical context, see: The Economic Weekly, ‘Ordinance Raj’ (1954) 6 The Economic Weekly 211 <http://www.epw.in/system/files/pdf/1954_6/8/ordinance_raj.pdf> accessed 31 January 2018; AK Roy v Union of India (1982) 1 SCC 271 [288].
10 The Ordinances provided for the Government of Bihar to take over the management and control of 429 Sanskrit schools, and other matters relating to the services of teachers, employees, etc., of the schools. See: Krishna Kumar II (n 5) 37–38.
11 Constitution of India 1950, art 213 (n 4).
12 Krishna Kumar II (n 5) 38–40.
13 Ibid 40.
14 Ibid.
15 Constitution of India 1950, arts 123 (n 3), 213 (n 4).
16 Ibid.
17 Krishna Kumar Singh v State of Bihar (1998) 5 SCC 643.
18 Krishna Kumar II (n 5) 85.
19 Ibid.
20 For example, see: ‘PTI, Repromulgation of ordinances “fraud” on the Constitution’ The Hindu Business Line (New Delhi, 2 January 2017) <https://www.thehindubusinessline.com/news/repromulgation-of-ordinances-quotfraudquot-on-the-constitution-apex-court/article9455533.ece> accessed 5 January 2018; The Hindu, ‘Clamping down on ordinance raj’ The Hindu (7 January 2017) <http://www.thehindu.com/opinion/editorial/Clamping-down-on-ordinance-raj/article17000455.ece> accessed 5 January 2018; Aadil Boparai, ‘The ordinance overreach’ The Indian Express (12 January 2017) <http://indianexpress.com/article/opinion/columns/the-ordinance-overreach-4469891/> accessed 5 January 2018; Gautam Bhatia, ‘Executive Legislation and the Separation of Powers in India’ (Admin Law Blog, 23 March 2017) <https://adminlawblog.org/2017/03/23/gautam-bhatia-executive-legislation-the-separation-of-powers-and-the-indian-supreme-court/> accessed 31 January 2018.
21 (1994) 3 SCC 1.
22 (1962) Supp 2 SCR 380.
23 (1985) 3 SCC 198.
24 Krishna Kumar II (n 5) 92.
25 Ibid.
26 Ibid 88.
27 See generally, Gautam Bhatia, ‘The Supreme Court’s Ordinance Judgment – II: Two Debates’ (Indian Constitutional Law and Philosophy Blog, 3 January 2017) <https://indconlawphil.wordpress.com/2017/01/03/the-supreme-courts-ordinance-judgment-ii-two-debates/> accessed 3 January 2018.
28 Krishna Kumar II (n 5) 61–62.
29 DC Wadhwa, Re-Promulgation of Ordinances: A Fraud on the Constitution of India (Orient Longman 1983) 8–17.
30 DC Wadhwa (n 7) 390.
31 DC Wadhwa (n 29).
32 DC Wadhwa (n 7) 393.
33 Ibid 394.
34 Ibid 395.
35 Ibid 391.
36 See generally: Shubhankar Dam, ‘Repromulgation game’ The Hindu (3 June 2015) <http://www.thehindu.com/opinion/columns/legal-eye-column-repromulgation/article7275518.ece> accessed 5 January 2018; JT Philip, ‘Decoding India’s ordinance system: Shubhankar Dam’ Live Mint (10 January 2014) <https://www.livemint.com/Specials/ZRtVJMBfOLoQ4l9Z0MA2wK/Decoding-Indias-ordinance-system--Shubhankar-Dam.html> accessed 5 January 2018.
37 DC Wadhwa (n 7) 393.
38 Bhatia (n 27).
39 Ibid.
40 Ibid.
41 Philip, ‘Decoding India’s ordinance system’ (n 36).
42 The Supreme Court of India or the High Courts in respective States.
43 Dam, ‘Repromulgation game’ (n 36).
44 AIR 1997 Del 58 (Delhi High Court).
45 RTI replies dated 31 January 2018 and 12 February 2018 from the Ministry of Parliamentary Affairs, Government of India and the Ministry of Law and Justice, Government of India respectively suggest that insofar as the Central Executive is concerned: (i) all Ordinances promulgated after Krishna Kumar II have been laid before Parliament; (ii) none of these Ordinances were re-promulgated; (iii) Bills corresponding to these Ordinances were tabled in Parliament; and (iv) Bills corresponding to these Ordinances were passed by Parliament.
46 Constitution of India 1950, arts 123 (n 3), 213 (n 4).
47 Ibid.
48 Ibid.
49 Ibid.
50 See generally, S Dam, Presidential Legislation in India: The Law and Practice of Ordinances (Cambridge University Press 2013).
51 DC Wadhwa, Endangered Constitutionalism: Documents of a Supreme Court Case (Gokhale Institute of Politics and Economics 2008) 293.
52 SR Chaudhuri v State of Punjab (2001) 7 SCC 126.
53 The Constitution of India 1950, art 164. “Other provisions as to Ministers – (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.”
54 Chaudhuri (n 52).
55 S Dam, ‘An Institutional Alchemy: India’s Two Parliaments in Comparative Context’ (2013) 39 Brooklyn Journal of International Law 14.
56 MP Jain, Indian Constitutional Law (5th edn, LexisNexis Butterworths Wadhwa Nagpur 2009) 178.
57 PRS Legislative Research, ‘Parliament and the Executive’ (November 2016) <http://www.prsindia.org/uploads/media/Conference%202016/Parliament%20and%20the%20Executive.pdf> accessed 31 January 2018.
58 For example, see: J Waldron, The Dignity of Legislation (Cambridge University Press 1999); J Waldron, Law and Disagreement (Oxford University Press 2000); as cited in S Dam (n 55).
59 Krishna Kumar II (n 5) 54.
60 Ibid 93–94.
61 Ibid 94.